Negligent Texting

A New Jersey judge recently held that a person who sends a text message to a driver cannot be held liable if the driver causes an accident due to the text message. While most states have laws banning text messaging while driving and it is well settled that a driver is liable for causing an accident while texting, this case is the first of its kind.

The plaintiffs in this case brought the claim based on the theory of aiding and abetting negligence. According to a leading case on aiding and abetting, in order for liability to attach, the plaintiffs must prove (1) that the primary tortfeasor committed the negligence that injured the plaintiffs, (2) the defendant was aware of its role in promoting the negligence at the time, and (3) the defendant knowingly and substantially assisted the primary tortfeasor in committing the negligence. In this case, the plaintiffs alleged that the defendant knew or should have known that the person she was texting was driving. Interestingly, the plaintiffs also argued that the defendant was “electronically present” at the scene of the accident via the text message.

Currently, the plaintiffs plan on appealing the decision. If the holding is overturned on appeal, there could be broad implications on negligence liability.

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